Where the sun don’t shine

Thursday, August 29, 2013

Like many states, California has a “sunshine” law via the California Public Records Act (CPRA) that provides for the inspection of public records maintained by state and local agencies.
The Pacific Merchant Shipping Association (PMSA) sought to use that law to obtain records by the port agent of the Board of Pilot Commissioners for the Bays of San Francisco, San Pablo and Suisun. (Several news organizations also submitted friend of court briefs supporting PMSA.)
By law, piloting services in San Francisco Bay and nearby waters are compulsory for large ships and provided by the San Francisco Bar Pilots, a monopoly regulated by the pilot board that dates back to 1850. There were 58 active pilots and two trainees at the end of last year.
The pilot board has seven members who are appointed by the California governor and confirmed by the state senate. By statute, two are pilots. Two others are nominated by PMSA, which is a trade organization for the shipping industry, and three are “public” members.
The pilots appointed a port agent, at the time of the litigation Bruce Horton, who was also president of the San Francisco Bay Pilots. (Since the litigation began, Horton has been succeeded by Peter McIsaac.)
The port agent’s job is to carry out orders of the pilot board, but he is not a member of the board nor does he receive compensation from it.
The port agent’s duties include notifying the board’s executive director of a suspected violation, navigational incident, misconduct, or other rules violation; collection of data, preparation of accounts and making of payments to the board required of pilots; reporting accidents, groundings, collisions or similar navigational incidents involving a vessel to which a pilot has been assigned, as well as suspected pilot misconduct; reporting matters that in the port agent’s opinion affect the ability of a pilot to carry out his duties; and reporting when a pilot is absent from duty for illness lasting longer than seven days and details about the pilot’s illness.
Beginning in July 2011, PMSA began using CPRA to request work rules and records assigning pilots to ships, specifically asking for “pilot logs.”
Mike Jacob, a vice president at PMSA, said his group sought information because of rate increases asked for by the pilots.
Jacob said PMSA was told by the attorney general of California that it was entitled to information it was seeking under CPRA, but information it received was heavily redacted.
Horton told PMSA he was not subject to the public records act and the “pilot logs” did not exist. However, he said there was a dataset that included some of the types of information PMSA apparently requested.
On Sept. 18, 2012, a Superior Court granted the writ directing the port agent to produce the logs, if they existed. It found while the port agent has “both a private and public incarnation” and that he “is a public official; among other things, the position was created by the legislature.”
The executive director of the pilot board said the board did not have the requested pilot logs, and Horton said while a small amount of the records of the bar pilots is submitted to the pilot board, the vast majority of bar pilot records are not. He said he maintained and controlled those records “solely in my private capacity as president of the bar pilots” and the information provided to the pilot board was not used to assign pilots to vessels or administer vacation time.
Horton sought a writ of mandate and/or prohibition directing the trial court to set aside its order, and the board of pilot commissioners also challenged the trial court order.
The board, Horton, and Bar Pilots all argued the port agent was not a state officer subject to CPRA and the records sought are private, not public.

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The state court of appeal stayed the trial court’s order and eventually granted the relief sought by the board and port agent.
It found that while the port agent is, for at least certain purposes, a public officer, PMSA did not establish that the requested records were subject to CPRA. (Board of Pilot Commissioners v. Superior Court. No. A136803, A1368066. Court of Appeal of State of California, First Dist., Div. Five. Aug. 1.)
However, the court noted the information that PMSA seeks may still come to light.
While the San Francisco Bar Pilots have their own hours of service regulations, the court noted “as a consequence of well-publicized maritime accidents,” the NTSB (National Transportation Safety Board) has recommended that state licensing boards promulgate “hours of service” rules to prevent pilot fatigue.
The court noted a legislative committee recently recommended the pilot board conduct a manpower utilization study based on actual pilot logs, and the California legislature has acted on both recommendations, requiring the pilot board to study the effects of work and rest periods on psychological ability and safety for pilots, and to promulgate pilot regulations establishing requirements for adequate rest periods.
“Presumably the information that PMSA seeks will come to light in that process,” the court noted.